Kyriakou v Kuzevski & Ors [2011] NSWSC 1541

Kyriakou v Kuzevski & Ors [2011] NSWSC 1541

There was a serious question to be tried that, despite the parties' contrary statement, the 1 November 2011 agreement gave the plaintiff, for value, a right to occupy residential premises for a fixed term as a residence and was therefore a residential tenancy agreement protected by the Residential Tenancies Act 2010. Because the plaintiff was without accommodation and offered undertakings to vacate after seven days, pay the specified amounts and not damage the premises, the balance of convenience favoured allowing him back into possession until 6 pm on 2 December 2011, while giving the defendants judgment for possession effective from 3 December 2011.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Application for Order Allowing Residence at Residential Premises for Seven Days / Contested Application in the Equity Division Duty List
Outcome
Plaintiff allowed back into possession until 6 pm on 2 December 2011 on undertakings; defendants given judgment for possession effective 3 December 2011; no order as to costs.
Legal Topics
['residential Tenancy Agreement' 'subletting' 'termination of Fixed Term Residential Tenancy Agreement' 'possession of Residential Premises' 'serious Question to Be Tried' 'balance of Convenience' 'consumer, Trader and Tenancy Tribunal Proceedings']
['landlord and Tenant' 'residential Tenancies' 'equity'] ['residential Tenancy Agreement' 'subletting' 'termination of Fixed Term Residential Tenancy Agreement' 'possession of Residential Premises' 'serious Question to Be Tried' 'balance of Convenience' 'consumer, Trader and Tenancy Tribunal Proceedings']

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Procedural Posture

Application for Order Allowing Residence at Residential Premises for Seven Days / Contested Application in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the agreement noted by the Consumer Trader and Tenancy Tribunal on 1 November 2011 was a residential tenancy agreement under the Residential Tenancies Act 2010.' "Whether the plaintiff was entitled to protection of s 84 of the Residential Tenancies Act 2010 notwithstanding the parties' statement that he was not a tenant." 'Whether the balance of convenience favoured allowing the plaintiff back into possession for seven days on undertakings.']

Ratio Decidendi

There was a serious question to be tried that, despite the parties' contrary statement, the 1 November 2011 agreement gave the plaintiff, for value, a right to occupy residential premises for a fixed term as a residence and was therefore a residential tenancy agreement protected by the Residential Tenancies Act 2010. Because the plaintiff was without accommodation and offered undertakings to vacate after seven days, pay the specified amounts and not damage the premises, the balance of convenience favoured allowing him back into possession until 6 pm on 2 December 2011, while giving the defendants judgment for possession effective from 3 December 2011.

Court Disposition

Plaintiff allowed back into possession until 6 pm on 2 December 2011 on undertakings; defendants given judgment for possession effective 3 December 2011; no order as to costs.

Orders

  • ['Upon the plaintiff undertaking to the defendant and to the Court to vacate the premises known as [xx] Tantallon Avenue, Arncliffe, New South Wales, by 6 pm on 2 December 2011, to pay the first defendant $600 forthwith and $721.48 within 14 days, and not to damage the premises but to yield them up by 6 pm on 2...